Scovill v. Glasner

• Citation: 79 Mo. 449
• Parties: SCOVILL v. GLASNER, Appellant.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

79 Mo. 449

SCOVILL

v.GLASNER, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

REVERSED.

Wash Adams and H. Stubenrauch for appellant.

Dunlap & Freeman for respondent.

PHILIPS, C.

Respondent, plaintiff below, sued the appellant in an action of trover, for the wrongful taking and conversion of certain household goods, wearing apparel, etc., the property of plaintiff. At the return term, and before answer filed, the plaintiff filed an amended petition, changing the action into one for maliciously suing out a writ of attachment, under which the goods were seized, and, as alleged, sold at a ruinous sacrifice. The amended petition set out the proceedings in the attachment suit, the grounds for which, alleged in the affidavit made by the defendant in this action, were, that the defendant was not a resident in this State, that the cause of action therein accrued out of the State, and that the defendant had absconded and secretly moved his property and effects into this State, and had fraudulently concealed and removed and disposed of his property, etc. Service was obtained therein by publication of notice; there was no appearance by the defendant in that suit; judgment was rendered therein, and the goods sold. The defendant moved to strike out the amended petition for the reason that the same changed the original cause of action, and in fact substituted a new cause. This motion was overruled, and defendant excepted. The defendant, however, filed answer to the amended petition, and went to trial thereon before a jury.

The plaintiff's evidence tended to show that he was an employe on a railroad train running into and out of the City of Kansas, Missouri; that prior to the 20th day of August, 1876, he and wife lived in Wyandotte, Kansas; that he then broke up housekeeping there and moved to Kansas City; that his wife went east to visit her friends Part of his household effects he stored with a merchant in Kansas City, to be kept for him until he again resumed housekeeping in Kansas City, which he expected to do on his wife's return in a short time; that he took rooms at the State Line House, which is in Missouri, with the balance of his effects; that he came to Kansas City to make it his home; that he occupied the room aforesaid, but took his meals at no particular place; that defendant's store was in West Kansas City, where he contracted the debt of $37, which was the basis of the attachment suit; that when he moved from Wyandotte, he did so openly, in daylight, passing, with the teams moving him, by the said store, and that all the officials and employes about the railroad offices and yards at the depot in Kansas City knew him, and knew where he was. The goods attached were those stored with the merchant aforesaid. He did not learn of the attachment until after the proceedings.

The defendant's evidence tended to show that he learned of the plaintiff's movement, but was unable to ascertain, after diligent inquiry, his whereabouts, but ascertained the storage of the goods in Kansas City; that the debt was past due, and the plaintiff had given no notice of his intended movement; that he took counsel of a reputable lawyer, and on his advice instituted the attachment, in good faith, and without any malice, etc.

Questions touching the competency of certain evidence arose in the progress of the trial, which will be stated in the opinion, as also respecting instructions given and refused. The jury returned a verdict for the plaintiff. From the judgment rendered thereon the defendant has appealed to this court.

1. AMENDMENTS, TESTS OF.

I. The first question presented by this record is the right of plaintiff to file the amended petition. It certainly carries the right of amendment to the extremest verge, to uphold the amendment in this case. It cannot, as plaintiff's counsel contends, be maintained as a rule, that because the original petition was an action ex delicto, any other cause of action in tort may be substituted by amended petition. If it can, an action for assault and battery might be substituted for trespass in forcibly taking plaintiff's horse. An action for slander might be snbstituted for a crim. con. action. Nor is it to be maintained that because two actions might be joined in separate counts in the same petition, therefore, the one may be substituted for the other, by way of amendment. One count might be for trespass to the freehold, another for assault and battery. The discussion of this question in Lumpkin v. Collier, 69 Mo. 170, shows that the right of amendment does not necessarily obtain because the two cases stated belong to the same general classifications known to the common law and the code. One of the tests there applied is, that the evidence which would support the one would not the other. “A defendant served with process on one cause of action, suffering a default might be confronted with a judgment on a cause of action totally different from that which he was summoned to answer.” The least that could be exacted in the exercise of the right of amendment is, that the amended petition should embrace the original cause sued on, with a like rule in respect of the measure of damages.

The original action in this case was merely for trover. On the frial of that action the plaintiff would have made out a prima facie case by showing title to the property, and that defendant, without his consent, wrongfully took and carried the same away. He need not have introduced a word about the attachment. This action the defendant might have defeated by showing that he had seized the same under the writ of attachment, obtained judgment thereon and sold. Although that judgment may have been irregularly obtained, and the proofs insufficient to justify its rendition, or absolutely false, it was not assailable in a collateral proceeding. It would have been a complete defense to the action of trover. Whereas, the amended petition set up the proceedings in an attachment suit, and sought to avoid the legal effect of the judgment therein, not by assailing it as void, but by averring that the suit was without probable grounds, and was malicious in its inception. True, the two petitions applied to the same property, but they were essentially different in character. The proof that would have sustained the first would have wholly failed in the second. The measure of damages in the two cases was essentially different. In the first the measure of damages is the value of the property taken with interest from the date of the caption to the trial. In the latter, in addition to the damages mentioned the plaintiff might be entitled to recover exemplary damages far exceeding the value of the property taken. And in this case the court instructed the jury that they could give the plaintiff smart money.

In Newton v. Allis, 12 Wis. 378, an action to recover damages for flowing the plaintiff's land, he was not permitted to amend so as to charge the defendant, under the statute, for appropriating the land to his own use. It was a substitution, and so is this. While the courts in observing the spirit of the code, should be liberal in allowing amendments, yet it should be in furtherance of justice, and not beget laxity in pleading, by encouraging attorneys, without consideration of what they want and how to sue for it, to state anything as a case, on the reliance that afterwards when they find out what they want they may substitute a new cause of action and call it an amended petition.

2. _____: waiver.

But is the defendant in a situation to avail himself of this error? Instead of standing by his motion to strike out this amended petition, he saw fit to take issue on the merits of the new cause of action. The trial court thus acquired jurisdiction over the person, as it already had over the subject matter. It is the well established rule in respect of demurrers, that where, after demurrer overruled, the defendant files answer, the demurrer is deemed to be waived. Pickering v. Miss. Valley Nat. Tel. Co., 47 Mo. 457. It is true that one of the principal reasons for this is that “a demurrer admitting the facts and an answer denying them are totally inconsistent with each other and cannot stand together.” But, arguendo,the same judge says the party should have abandoned the case there, “and thus avoided the wholly fruitless expense of a trial of the issues of fact. Having taken his chances upon those issues, it is now too late to go back and revive the demurrer.” In Fuggle v. Hobbs, 42 Mo. 541, where the defendant complained of the striking out of an amended answer, Wagner, J., said: “If the appellant intended to avail himself of the errors committed by the court in this respect, he should have let judgment go at the time and stood on the exceptions. By pleading over and going to trial on another issue, he voluntarily abandoned whatever grounds he might have had for a review of the action of the court. The judgment appealed from is the judgment rendered upon the issue tendered by the last pleading, etc.”

The examination I have made of cases, where like questions have been before the appellate courts, and the party complaining has secured reversal, shows that it is where he has stood on his motion. I am of opinion that the better rule to establish touching the practice in this respect, would be to regard the error as waived where the party goes to trial on the merits of the amended pleading. He ought not to make the court a place of chance, and appeal only when he has failed on another accepted issue.

3. AGENT'S DECLARATIONS, ETC., AS EVIDENCE AGAINST PRINCIPAL.

II. It is assigned for error that the trial court permitted witnesses to testify to statements and admissions made by Dan Glasner after the attachment suit was instituted. The evidence shows that Dan was the brother of the defendant, and had charge of the store as defendant's agent. His agency extended to the...